Introduction to Homicide

Homicide is the act of one person killing another. If the death was the result of an accidental killing or pure misfortune, it will not be a punishable homicide. Otherwise, it is easier murder to manslaughter. The principles for murder are follows (:s 18 (1)):

Defendant foresaw the probability (as opposed to possibility: Crabbe[1]) of his actions resulting in death (as opposed to grievous bodily harm: Royall[2]).

Constructive murder - no mens rea requirement if a homicide was committed (by the accused OR an accomplice) during the commission of a crime that attracts life/25 years imprisonment.

If the above elements are proved beyond reasonable doubt, and there are no defences, the defendant will be convicted of murder.

Maximum sentence - life imprisonment: s 19A Crimes Act 1902 (NSW).

The judge can vary this as he wishes: s 61 Crimes (Sentencing Procedure) Act 1999.

Imprisonment for life is to be imposed by a court if it is satisfied that the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.[3]

Murder

Constructive murder - no mens rea requirement if a homicide was committed (by the accused OR an accomplice) during the commission of a crime that attracts life/25 years imprisonment.

Grievous bodily harm is defined in s 4 of the Crimes Act 1900 (NSW). In short, it includes any 'permanent or serious disfiguring of the person'.

Note that grievous bodily harm includes damage to a women's unborn fetus.

Case law has clarified reckless indifference to human life as when a defendant foresaw the probability (as opposed to possibility) of his/her actions resulting in death (as opposed to grievous bodily harm) and yet continued anyway. This concept is properly discussed below.

Lastly, some miscellaneous points about murder include:

s 18 (2) (a) states that the act must be 'malicious'. However, in Coleman,[7] the court held that does not add anything - the concept of malice is already covered within the mens rea requirements.

In Knight[8], the court held that where the act does not cause death, accused can be charged for an attempt. Attempt requires proof of an actual intent to kill.

Manslaughter

[9] s 18 (1) (b) specifies that any other form of punishable homicide (which isn't murder) is taken to be manslaughter. Since manslaughter isn't defined in the statute, the common law definitions are still in place. There are three types of manslaughter:

Involuntary manslaughter - this is where the defendant does not satisfy the sufficient mens rea for murder.

Further divided into two classifications: manslaughter by an unlawful & dangerous act, or manslaughter by criminal negligence.

Voluntary manslaughter - this is where the defendant has satisfied the mens rea for murder, but there were mitigating circumstances (ie, successful partial 'defences'). These include:

Provocation.

Substantial impairment.

Excessive self-defence.

Infanticide.

Subjective manslaughter - this is where the defendant only partially meets the requirements set by case law to reckless indifference to human life. This can occur in two ways:

The defendant foresaw the probability of grievous bodily harm as opposed to the probability of death (note: this is reckless murder in other Australian jurisdictions).[10]

The defendant foresaw the possibility of death (as opposed to the probability).[11]

Manslaughter is discussed in greater detail in its own article, manslaughter.

Prosecution Process

[12] In any trial for murder, the alternative verdict of manslaughter is always open to the jury.[13] The DPP simply charges murder, leaving jury to decide if it was murder or manslaughter.

Sentences

This is only a maximum punishment - the court still has final discretion to impose punishment for a specified term for murder.[16]

Imprisonment for life is to be imposed by a court if it is satisfied that the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.[17]

There is a standard non-parole period of 20 years, raised to 25 years in some instances (please follow the link to see the procedure for standard non-parole periods).

The maximum sentence for manslaughter is 25 years.[18] There is no standard non-parole period for manslaughter.

Suicide

As per s 31A Crimes Act 1900 (NSW), it is no longer an offence to attempt to commit suicide.

Death and Violence to Fetuses

[19] A foetus is not considered a human being. Thus, violence to a foetus is not considered murder or manslaughter.

However, note that the the abortion of the foetus from an attack still constitutes grievous bodily harm to the mother (as per the definition of grievous bodily harm given in s 4).[20]

If the accused kills a pregnant woman in the course of attacking her foetus, s/he will still be liable for murder since they intended to cause her grievous bodily harm.

However, in NSW, murder requires intent to kill, not to inflict grievous bodily harm (see above). This area is thus far from clear.

Historical Aspect

[21] Our conceptions of criminal homicide have changed fundamentally over time. This is examined in Wilson:[22]

There has been a shift over the years in the way we look at murder. While a murder conviction previously required only the act causing death (ie, emphasis on the actus reus), the law has been increasingly willing to look at the mental element of the crime (ie, emphasis on the mens rea).

Accordingly, manslaughter had a gradual progression.

Reckless Indifference to Human Life

[23] Case law has clarified what does 'reckless indifference to human life' means. The first element was discussed in Crabbe:[24]

Facts: the accused drove a truck into a bar and killed several people after consuming a substantial amount of alcohol.

Held: the trial judge was incorrect in his directions when he set the threshold of foreseeability as a mere possibility of causing death or grievous bodily harm. The mental state necessary to constitute murder is ‘knowledge by the accused that his acts will probably cause death or grievous bodily harm’.

In Boughey,[25] and then again in Faure,[26] the requirement of 'probably' was watered down to whether the consequences are 'likely' to happen (because of some Tasmanian provisions). However, this broader application was refuted in Annakin,[27] which brought the standard back to the narrow approach of 'probably'.

The narrow approach was approved in Royall, which also added a further qualification (note, this case applies only to NSW):[28]

Held: for murder, the prosecution has to prove that the accused foresaw the probability of death, as opposed to the probability of death OR grievous bodily harm. A defendant who is recklessly indifferent to serious bodily harm of itself will be guilty of manslaughter, not murder.

Note: this qualification (of recklessly indifference only to death) only applies in NSW

In Solomon[29], the court held that in NSW, if the prosecution can only prove that the defendant foresaw the probability of grievous bodily harm (as opposed to death), it will be 'subjective manslaughter' rather than murder.

In conclusion, a defendant is guilty of reckless indifference to human life if s/he foresaw the probability (as opposed to possibility) of his/her actions resulting in death (as opposed to grievous bodily harm).

Irrelevance of Method Causing Death

[30] The aforementioned case Royall also held that death does not have to be immediate consequence of the act – it is still murder/manslaughter if he suffered death later on (ie, in the hospital because of the injuries).

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).